Bombay High Court
Shamin @ Chintu Jamaluddin Shaikh vs The Senior Inspector Of Police on 24 March, 2011
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, A. R. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3044 OF 2010
Shamin @ Chintu Jamaluddin Shaikh ]
Aged 35 years, residing at Flat No. 404, "D" Wing, ]
4th Floor, Patidar Complex, Kannamwar Nagar, ]
Vikhroli (East), Mumbai 400 083 ] ...Petitioner
V/s.
1. The Senior Inspector of Police,
ig ]
Khar Police Station, Mumbai ]
2. Astt. Commissioner of Police, Khar Zone, ]
Khar, Mumbai ]
3. The Hon'ble Home Minister, ]
Government of Maharashtra, Mantralaya, ]
Mumbai 400 032 ]
4. The Senior Inspector of Police, Crime Branch, ]
Unit-IX, Mumbai ]
5. The State of Maharashtra ]
6. Narayanrao T. Rane ]
Dhayeshwari Bungalow, Next to C.M. Bungalow, ]
Malabar Hill, Mumbai 400 006 ] ...Respondents.
Mr. M.K. Kocharekar i/by Mr. J.S. Shaikh for the Petitioner
Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol, Pubic Prosecutor,
for the State
Mr. G.S. Godbole i/by Mr. Hrishikesh Mundargi for Respondent No. 6
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CORAM: A.M. KHANWILKAR AND
A.R. JOSHI, JJ.
DATE OF RESERVING: 14-3-2011
DATE OF PRONOUNCING: 24-3-2011
JUDGMENT (Per A.M. Khanwilkar, J.):-
Rule. Rule made returnable forthwith, by consent.
2. By this Writ Petition under Article 226 of the Constitution of India, the petitioner seeks direction against respondent No.5, the State of Maharashtra, to transfer the investigation in connection with C.R. No. 440 of 2010 registered with the Khar Police Station for offences punishable under Sections 323, 307 and 504 read with Section 34 of the Indian Penal Code and Sections 3 and 25 of the Indian Arms Act to the Central Bureau of Investigation (hereinafter referred to as 'CBI', for the sake of brevity). The petitioner has prayed for further direction that an independent authority be directed to conduct enquiry into the inactions / delay in investigation in the above numbered criminal case registered with Khar Police Station, Mumbai, and to take appropriate action against the erring police officers.
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3. The background in which this petition has been filed is that on 23rd September, 2010, the petitioner got himself admitted in Hiranandani Hospital in injured condition. It is his case that he was member of Maharashtra Navnirman Sena and was appointed by the said party as Traffic Wing (Maharashtra). About two and a half months before the date of the incident, he left the said party and joined Swabhiman Sanghatana, an N.G.O. Run by Congress Leader and Revenue Minister Mr. Narayan Rane's son, Nitesh Rane. The petitioner was appointed on the post of the President of Swabhiman Transport Organisation. On 23rd September, 2010 at around 11.00 to 11.15 a.m., he received a telephonic call on his mobile from Nitin Varadnarayan, Personal Assistant of Nitesh Rane. He was told to come to the private office of Nitesh Rane at around 1.00 p.m. The petitioner, along with his two friends, accordingly, proceeded to Khar, where the private office of Nitesh Rane is situate. When the petitioner reached the office of Nitesh Rane, he was told by Nitin Varadnarayan to wait for some time. After lapse of some time, the two friends, who were accompanying the petitioner, went away. The petitioner was eventually called inside the chamber of Nitesh Rane by his Personal Assistant Nitin Varadnarayan at around 4.00 p.m. When he entered the chamber of Nitesh Rane, he offered sweet box, which he was carrying with him, to Nitesh Rane and ::: Downloaded on - 09/06/2013 17:08:14 ::: 4 304410 congratulated him for having become uncle. When the petitioner bent down for taking blessings of Nitesh Rane, he, without any provocation, first gave a fist blow on his back and pulled his hair and banged his head on the wall and abused the petitioner in filthy language. He also threatened to kill the petitioner. The petitioner asserts that Nitesh Rane reacted in this manner, presumably because he had suffered a heavy loss and did not appreciate the petitioner distributing sweets, which he took as an affront. The petitioner asserts that, at the relevant time, one Zahid Shaikh and Nitin Varadnarayan, who were present, also assaulted the petitioner. The petitioner apologised to Nitesh Rane for his conduct.
Instead, Nitesh Rane got infuriated and took out his black-colour revolver and loaded the same. He pointed that loaded revolver to the petitioner.
When the petitioner tried to run away, at that time, Nitesh Rane fired one bullet towards the petitioner, but, fortunately, the bullet missed and bounced back from the window-glass. It is the case of the petitioner that the said bullet, after ricocheting, passed away by touching the cheek of the petitioner, as a result of which, the petitioner suffered injury on his cheek. It is the case of the petitioner that the petitioner realised slight heat on his cheek; and, when the petitioner tried to run away from the place of incident, another round of bullet was fired, but the same, again, missed the target. Thereafter, the petitioner ran away and escaped from ::: Downloaded on - 09/06/2013 17:08:14 ::: 5 304410 the staircase. After coming out of the building, he got into his car, which was parked outside the building. His friend, Devesh, who was waiting downstairs also got into the car. The petitioner immediately started the car and made escape from the place of the incident. It is the case of the petitioner that, while driving, when he looked into the rear mirror, he realised that one white Gypsy was following him and one stout person was pointing a revolver towards him. As a result, the petitioner sped his vehicle and proceeded towards Powai. He straight-way drove his car to Hiranandani Hospital. He had informed about the incident to his wife on mobile. He also tried to contact Police Emergency Telephone Number;
but could not succeed. The petitioner then got himself admitted at Hiranandani Hospital and gave the history of assault upon him, and the same was recorded by the hospital authority. Presumably, the hospital officials immediately informed Powai Police Station, as it was a medico-
legal case. The officials of Powai Police Station then arrived in the hospital and recorded statement of the petitioner. Thereafter, the Powai Police Station initially registered the F.I.R. vide C.R. No. 00 of 2010 against Nitesh Rane and others as accused. The said F.I.R. was then transferred to Khar Police Station, as the offence took place within the jurisdiction of Khar Police Station and was re-numbered as C.R. No. 440 of 2010.
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4. The petitioner asserts that the police officials of Powai Police Station seized the blood-stained clothes of the petitioner under panchnama and subsequently the said panchnama, along with clothes, were forwarded to Khar Police Station. The petitioner alleges that, after the F.I.R. was transferred to Khar Police Station, the officials of Khar Police Station did not take immediate steps, as was expected, in spite of the seriousness of the offence. The officials became silent spectators and did not seriously investigate the matter. According to the petitioner, on the one hand, the police officials of Khar Police Station were totally silent spectators and, on the other hand, the incident of firing and assault was flashed on all the leading television channels as well as newspapers.
5. To his utter surprise, on 24th September, 2010, the very next day of the incident, the Chief Executive Officer of Hiranandani Hospital, Dr. Sujeet Chatterjee issued statement before the media at around 12.30 p.m. that the petitioner did not receive bullet injury.
6. Whereas, prior to release of this press statement, the petitioner had requested Hiranandani Hospital officials to supply him his medical report. However, the Hospital Authority refused to give him the ::: Downloaded on - 09/06/2013 17:08:14 ::: 7 304410 same. Instead, the petitioner was asked to make an application for the said report.
7. The petitioner has then mentioned about the press conference given by the father of Nitesh Rane, i.e., Narayan Rane, the Revenue Minster of State of Maharashtra. In his press interview at around 5.30 p.m. on 24th September, 2010, he claimed that his son was innocent and had nothing to do with the alleged crime. He further stated that the incident has been blown out of proportion, out of political rivalry, to malign him and his family members. According to the petitioner, during the said press conference, Narayan Rane showed medical report of Hiranandani Hospital to the electronic as well as print media, pointing out that there was no case of firing. The petitioner asserts that it is surprising that the report was not made available to the petitioner, in spite of his request to the Hospital Authority, but it already travelled to Narayan Rane before his press conference on the same day.
8. The petitioner further states that subsequently, on 25th September, 2010, he decided to shift from Hiranandani Hospital to J.J. Hospital. He asked for police protection, which was given to him and thereafter, the petitioner got himself admitted in J.J. Hospital along with ::: Downloaded on - 09/06/2013 17:08:14 ::: 8 304410 the medical reports, which were furnished to him by Hiranandani Hospital.
9. According to the petitioner, Khar Police Station, except recording panchnama of the petitioner's car on 24th September, 2010, did not take any other action against the culprits, though the names were given by the petitioner. Later on, the police officials from Khar Police Station arrived at J.J. Hospital and recorded the statement of the petitioner's sister, his wife and mother.
10. On 28th September, 2010, the petitioner refused to take medical assistance from J.J. Hospital, as well as refused to take any food, to protest against the inaction of the police officials against the named accused. The petitioner was assured that appropriate action would be taken against the named accused, and was forcibly administered medicines, as the sugar level of the petitioner had shot up. The petitioner states that he was examined, and treated for the firearm injury suffered by him on his cheek, and was eventually discharged from J.J. Hospital on 29th September, 2010.
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11. According to the petitioner, no progress in the investigation was made by the officials of Khar Police Station, nor any arrest of even the named accused was made. At the same time, the police were reluctant to give any information asked by the petitioner on the ground that the matter involves high profile personalities. The petitioner was also told by the Police Authorities that there is some pressure on them not to proceed hastily in the case. The petitioner has alleged that the police officers investigating the matter are under the control of Narayan Rane, who happens to be Revenue Minister of State of Maharashtra and a heavy-weight political leader.
12. The petitioner was, therefore, more than convinced that he would not get justice and fair investigation of his case. Therefore, the petitioner approached the Home Minister on 1st October, 2010. Before that, the petitioner had already made various representations to the Assistant Commissioner of Police, Khar Zone. The petitioner has also stated that, in view of the representation made by the petitioner to the Home Minister, the case was transferred to Crime Branch, Unit IX. On getting this information, when the petitioner visited the Crime Branch, Unit IX, he was told that the case has been transferred to Senior Police Inspector one Mr. Sanjay Govind Satardekar. According to the ::: Downloaded on - 09/06/2013 17:08:14 ::: 10 304410 petitioner, no progress in the investigation was made even after it was transferred to Crime Branch. According to the petitioner, the accused had a big political clout, and was successful in derailing and sabotaging investigation handled by not only Khar Police Station but also the Crime Branch, which was directly under the control of State Government, and, therefore, he apprehended that the investigation will not be a free, fair and impartial investigation, nor will the police book the offenders and perpetrators of the crime.
13. It is in this background the petitioner has approached this Court by way of present Writ Petition under Article 226 of the Constitution of India.
14. Since the petitioner had made allegations against Narayan Rane by name, it was made clear that those allegations could be taken forward only if the person, against whom the allegations are made, is made party to the petition. Therefore, the petitioner, later on, amended the petition by adding Narayan Rane, the father of Nitesh Rane, as respondent No. 6.
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15. The petition has been opposed by the State as well as the newly-added respondent No. 6. The affidavit of newly-appointed Investigating Officer of the Crime Branch, Sanjay Govind Satardekar, dated 12th November, 2010, has been filed to oppose this petition. The affidavit essentially counters the allegations of the petitioner that the investigation is not progressing properly or that the same is proceeding under dictation of political bigwigs. In this affidavit, it is stated that Powai Police Station, after getting information, recorded the complaint, being C.R. No. 00 of 2010, on 23rd September, 2010 itself. Powai Police Station then conducted panchnama of clothes of the injured, which were seized. Mouthwash of the injured was taken by Hiranandani Hospital, and the same was given to Powai Police Station.
16. It is also mentioned that, in the meantime, Khar Police Station carried out panchnama of the place of incident on 23rd September, 2010. The offence was then transferred by Powai Police Station to Khar Police Station on the night between 23rd and 24th September, 2010, which has been registered as C.R. No. 440 of 2010.
He has further stated that panchnama of seizure of clothes of Nitesh Rane was conducted by Khar Police Station on 24th September, 2010, and the statement of Nitesh Rane was also recorded. The panchnama of the ::: Downloaded on - 09/06/2013 17:08:14 ::: 12 304410 car of the complainant was drawn on 24th September, 2010 by Khar Police Station. Besides, the panchnama was drawn of the weapons that were handled by the two police constables, who were on guard, and the same were seized.
17. It is further stated that Forensic Expert was called to the place of the incident, and, accordingly, panchnama was drawn. He has then referred to the names of 25 persons whose statements have already been recorded. It is further stated that the clothes of the injured and the accused were forwarded to Forensic Laboratory on 28th September, 2010, and mouth-wash of injured was sent on 27th September, 2010.
The weapons of police constables, which were seized, were sent for forensic examination on 28th September, 2010. The injured was sent to J.J. Hospital for further treatment on 25th September, 2010. The then Investigating Officer, on 27th September, 2010, requested the report of the doctors and opinion from the panel of four doctors of J.J. Hospital as to the nature and cause of injury. That report was awaited.
18. He has also adverted to the report received from Hiranandani Hospital about the nature of injuries, dated 28th September, 2010. It is then stated that the offence was transferred to Crime Branch, ::: Downloaded on - 09/06/2013 17:08:14 ::: 13 304410 which has been registered as C.R. No. 96 of 2010 on 2nd October, 2010, and the investigation thereof was continued by the Crime Branch. After the investigation was taken over by the Crime Branch, the Forensic Report in respect of clothes of injured and accused, weapons of the police constables and mouth-wash of the injured was received on 8th October, 2010.
19. He has then stated that J.J. Hospital demanded the statement of Hiranandani Hospital, photographs, injury certificate which were, therefore, collected by Crime Branch and forwarded to panel of four doctors of J.J. Hospital. He then proceeded to record the further statements of 11 persons on different dates. He also sent reminders to J.J. Hospital, Forensic Department, etc., for expediting the reports. He also requested the Traffic Headquarters for CC TV footage on 4th October, 2010. On 4th October, 2010, he also addressed communication to Hiranandani Hospital for forwarding statement of doctor and injury certificate of the complainant. He also sent letter dated 7th October, 2010 to the Collector of Sindhudurg whether the accused was having Arms Licence.
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20. He has then mentioned about the receipt of photographs of injury and injury certificate from Hiranandani Hospital on 6th October, 2010. He then carried out the panchnama of the place of incident on 9th October, 2010 along with the complainant. He has then referred to the communication received from the Collector, Sindhudurg, dated 11th October, 2010, informing that no Arms Licence has been issued to Nitesh Rane. He has then adverted to the report received from the panel of four doctors from J.J. Hospital dated 14th October, 2010, wherein the doctors have opined that the injury caused to the complainant is less likely caused by a projectile discharge from a fire-arm and there is no evidence of bullet / metallic fragment like radio opacity. The doctors have also opined that, in certain circumstances, self-inflicted injuries on face and head could be possible. Furthermore, the said injuries are possible by moving a relatively pointed and sharp hard object like glass or metal.
21. He has then stated that, considering the opinion of expert doctors of J.J. Hospital, and the fact that there is no iota of evidence of firing at the alleged incident as well as lack of any marks or blood-stains indicating that such assault was inflicted on the complainant; and after discussions with the senior officers, a letter dated 15th October, 2010 was sent to J.J. Hospital raising queries as to whether the injury sustained by ::: Downloaded on - 09/06/2013 17:08:14 ::: 15 304410 the complainant was self-inflicted. Till the filing of the reply-affidavit dated 12th November, 2010, the said information was still awaited.
22. After disclosing the various steps taken during the investigation, in particular from the stage when the investigation was transferred to the Crime Branch on 2nd October, 2010, the present Investigating Officer has refuted the allegation of the petitioner that there is inaction in the investigation or, for that matter, that investigation was not being properly done by the Crime Branch on account of political pressure.
23. Respondent No. 6 has filed his reply-affidavit to oppose the petition and with particular reference to the allegations made against him personally in the petition. He has clarified, at the outset, that he was Industries, Ports Minister in the current State Cabinet and that Nitesh Rane, who has been named as accused in C.R. No. 440 of 2010 registered with Khar Police Station at the instance of the petitioner, is his son. According to respondent No. 6, the Writ Petition preferred by the petitioner is frivolous and is based on unfounded and unsubstantiated allegations. He has denied that he is controlling the investigating machinery. According to this respondent, the petitioner went about ::: Downloaded on - 09/06/2013 17:08:14 ::: 16 304410 making false allegations against his son, Nitesh. The allegations made by the petitioner have been belied from the medical report of Hiranandani Hospital. Dr. Sujeet Chatterjee of Hiranandani Hospital had disclosed before the media that there was no bullet injury on the person of the petitioner. Further, the petitioner has gone to the extent of making false allegations even against Dr. Sujeet Chatterjee.
24. Respondent No. 6 has asserted that, during the press conference held by him on 24th September, 2010, he had claimed that his son was innocent and had nothing to do with the alleged crime. He has, however, denied that he showed the medical report of Hiranandani Hospital to the electronic as well as print media, pointing out that there was no case of firing. While denying this allegation, he has offered explanation that, on the date of incident, he was not in town, and was in his constituency. He arrived in Mumbai on the next day of the incident, and, at the airport itself, he was mobbed by media persons, who wanted him to reveal about the incident. The media persons followed him till his residence at Khar. On that day itself at about 12.30 in the afternoon, the doctor of Hiranandani Hospital gave press release that the petitioner did not suffer any fire-arm / bullet injury. The statement before the media made by the doctor was reported to him by the persons, who were ::: Downloaded on - 09/06/2013 17:08:14 ::: 17 304410 present during the press conference at Hiranandani Hospital. He had merely reiterated the facts stated by the doctor during the said press release to strengthen his stand that false allegations are made at the behest of his political opponents against his son, who was innocent, so as to harass and malign his reputation. He has categorically stated that he had not shown any medical report of Hiranandani Hospital to the electronic as well as the print media as alleged. He, however, admits of having reported orally what was common knowledge by then as per the press briefing given by the Chief Executive Officer of Hiranandani Hospital Dr. Sujeet Chatterjee. According to this respondent, the petitioner is under misconception that the media and police in the State are controlled by political leaders or big personalities, as alleged. He has asserted that the allegations made by the petitioner are frivolous and imaginary and are made only to malign his political career.
25. In reply, the petitioner has filed rejoinder-affidavit dated 5th January 2011, reiterating his stand that the investigation of the case is likely to be sabotaged due to political interference. So far as the allegations that respondent No. 6 having shown medical report from Hiranandani Hospital during his press conference is concerned, the stand taken in the rejoinder-affidavit is that, on perusal of the DVD, it clearly ::: Downloaded on - 09/06/2013 17:08:14 ::: 18 304410 establishes that respondent No. 6 answered the media, whereby it reveals that, within 24 hours of the incident, respondent No.6 was totally updated on the investigation carried out by the officers and also medical reports.
It is further stated that respondent No. 6 categorically made an admission that he has been briefed by the police officials, though he made a statement before the press that he himself did not meet his son during the day of the incident, i.e., 23rd September, 2010. The transcription of the press conference conducted by respondent No.6 has been placed on record. The English translation of the said transcript is filed as Exhibit 1.
The correctness of this translation has not been disputed before us.
The same reads thus:-
"NITESH RANE FIRING CASE Dated 24th September, a day next to the Nitesh Rane firing incident on Chintu Shaikh Press Conference by Narayan Rane at his Bandra Residence with Congress M.P. Son Nilesh Rane and Nitesh Rane INTRODUCTION TO THE MEDIA BY WARNING the Media by Mr. Narayanrao Rane MEDIA Sir, Mr. Nitesh Rane please tell us about whole incident?
NARAYAN RANE is an arrogant manner Dare, if you ask anything to Nitesh Rane whatever you want to ask, you can question me, Nitesh will ::: Downloaded on - 09/06/2013 17:08:14 :::
19 304410 not answer to any of your questions, or else I'll move away "Did you get that".
MEDIA Sir, How can you say that incident is a conspiracy merely to defame me?
What is the reason behind this Sir?
NARAYAN RANE I have plotted my men inside and also outside the premises of Hiranandani Hospital.
ig They are reporting me all the time about the ongoings in hospital and had given me information that many Shiv Sena leaders and supporters are visiting Mr.Chintu Shaikh at the Hospital and supporting him. Shiv Sena is supporting Mr.Chintu Shaikh and trying to defame me.
MEDIA Sir, How can you prove that Shiv Sena is supporting Chintu Shaikh?
NARAYAN RANE in full rage You cannot cross question me, I have called you to my place, I am warning all you media people out there, be in your limits.
'Did you get that' MEDIA Sir, How you say and by what reasons that this all incident is a conspiracy to defame you Mr. Nitesh Rane?
::: Downloaded on - 09/06/2013 17:08:14 :::20 304410 NARAYAN RANE I have plotted my men at the Hiranandani Hospital and one man plotted by me is all the time present in the hospital and he's keeping a track on all the happenings going on in the hospital in favour of Chintu Shaikh & he's reporting me everytime.
MEDIA Sir, What about the Medical Reports of Mr. Chintu Shaikh NARAYAN RANE See, yesterday I was in Sindhudurg district. Today afternoon I have arrived in Mumbai. I have received detailed report from D.C.P. and Sr. Inspector of Police of Khar Police Station that nothing has happened in Nitesh Rane's Khar Office. They have personally visited the spot of crime and they have given clean chit. I have received the Medical Reports of Mr. Chintu Shaikh and they say that 'the injury caused to Mr. Chintu Shaikh is not a bullet injury' as stated by the Hiranandani Hospital's Medical Report. The Media is purposely targeting me and trying to defame me and my son Mr. Nitesh Rane.
NARAYAN RANE See 'I also have media power'. I have my Printed Media my daily Newspaper 'Prahar'. From tomorrow onwards I'll start writing into it and defame all the people from Chintu Shaikh's side. I will start 'BLACK MAILING' the people from Chintu Shaikh's side and take my revenge from them in all the possible Negative Ways and means. 'You just wait and watch'." (emphasis supplied) ::: Downloaded on - 09/06/2013 17:08:14 ::: 21 304410
26. During the hearing, the present Investigating Officer produced the video-recording of the spot panchnama conducted by Khar Police Station on the night of 23rd September, 2010 at around 2300 hours.
The said video-recording was shown to us on laptop in chambers in the presence of the Advocate General as well as the counsel for respondent No. 6. However, considering the case made out in the petition and pressed during the argument, we thought it appropriate to direct the Investigating Officer to discreetly collect certain information, more particularly with regard to the telephone call details of certain persons, which would throw light on the controversy on hand. As the matter is still at the stage of investigation, we may not like to divulge the names of persons whose mobile and landline telephone information has been obtained. We would broadly mention that the telephone information has been obtained of the named accused and of persons associated with them forming one group as well as that of the officials of Powai Police Station, Khar Police Station, Hiranandani Hospital and J.J. Hospital forming separate groups. This information has been collected at our instance by the present Investigating Officer of Crime Branch, as we wanted to test as to whether there was any attempt or possibility of influencing the investigation of the case at any stage. We would advert to this aspect a little later. It is, however, relevant to note that the call record made ::: Downloaded on - 09/06/2013 17:08:14 ::: 22 304410 available to us is only in respect of mobile phones of the concerned persons. The local calls made from landline to landline, as informed by the present Investigating Officer, are not available. Thus, we may have to rest our opinion on the basis of the summary of information of call records made available to us by the present Investigating Officer.
27. Before we proceed to analyse the matter further, it may be useful to advert to the recent decision of the Constitution Bench of the Apex Court in the case of State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors., reported in (2010) 3 S.C.C. 571. One of the questions considered in this case was, even when the State Police is not in a position to conduct an impartial investigation because of extraneous influences, yet the Court cannot exercise executive power of directing the police force of another state to carry out investigation without the consent of that state. This contention has been specifically adverted to in paragraph 13 of the decision. In paragraph 14, the Court has also adverted to another argument that there is significant difference between the power of the Supreme Court under Article 142 of the Constitution and the jurisdiction of the High Court under Article 226 of the Constitution; and because of territorial limitations under Article 226(1) of the Constitution, the High Court ::: Downloaded on - 09/06/2013 17:08:14 ::: 23 304410 cannot issue any direction to the authorities situated outside the territories over which it has no jurisdiction. While considering these arguments, the Apex Court, on analysing its earlier decisions and settled legal position, recorded its conclusions in paragraph 68 onwards as follows:-
68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of ::: Downloaded on - 09/06/2013 17:08:14 :::
24 304410 the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
ig (iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
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(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the igpowers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the ::: Downloaded on - 09/06/2013 17:08:14 ::: 26 304410 local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
71. In Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. (2002) 5 SCC 521, this Court had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. We respectfully concur with these observations." (emphasis supplied)
28. In the above-mentioned decision of the Constitution Bench, reference is made to a decision in Minor Irrigation & Rural Engg.
Services, U.P., v. Sahngoo Ram Arya, reported in (2002) 5 SCC 521, which has been quoted with approval. In paragraphs 5 and 6 of the said decision, the Apex Court observed thus:-
"5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. This is a requirement which is clearly deducible from the judgment of ::: Downloaded on - 09/06/2013 17:08:14 ::: 27 304410 this Court in the case of Common Cause. This Court in the said judgment at paragraph 174 of the Report has held thus:
'174. The other direction, namely, the direction to CBI to investigate 'any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of 'life' and 'liberty' guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of 'life' has been explained in a manner which has infused 'life' into the letters of Article
21.'
6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of 'ifs' and 'buts' and thought it appropriate that the inquiry should be made by CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause." (emphasis supplied)
29. We have heard counsel appearing for the respective parties.
Keeping the above principles expounded by the Apex Court in mind, we would proceed to examine the present matter to consider whether the petitioner is entitled for the reliefs as claimed. If we were to simply go ::: Downloaded on - 09/06/2013 17:08:14 ::: 28 304410 by the material produced by the respondents to review the allegation of inaction or that the investigation is being done under dictation or under political pressure, it may appear that the spot panchnama done by Khar Police Station at around 23.00 hours on 23rd September, 2010 does not indicate any adverse circumstance to even infer that any incident of assault on the petitioner must have taken place, much less injury caused to the petitioner due to firing from a loaded revolver of Nitesh Rane. As a matter of fact, not even a stain of blood was found on the spot in the said panchnama. This would completely absolve the involvement of Nitesh Rane and his associates.
30. However, the circumstances, which prompted the police officials of Khar Police Station to proceed to record the said spot panchnama are in the realm of suspicion. In the first place, Case Diary No. 1 dated 24th September, 2010 suggests that information regarding the incident was disclosed to the officials of Khar Police Station at around 19.00 hours on 23rd September, 2010 by officials of Powai Police Station.
On receiving that information, the police officials of Khar Police Station first enquired about the location of office of Swabhiman Sanghatana, of which Nitesh Rane is the President.
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31. It transpired that Nitesh Rane had office within the jurisdiction of Bandra Police Station at Deccan Court, Ground Floor, Near Movie Time Theatre, S.V. Road, Bandra (West), Mumbai. It was also learnt that another personal office of Nitesh Rane is at Sant Niwas, 2nd Floor, 14th road, Linking Road, Khar (West), Mumbai. The police party was immediately sent to that office, but it was found that no incident had occurred at that place. However, no entry is made in the Police Station Diary of Khar Police Station to this effect. The explanation is that only at around 23.00 hours, the Senior Police Inspector of Powai Police Station informed that the complainant was attacked at Sant Niwas, above Rajkumar Jewellers, Linking Road, in the office of Nitesh Rane by firing from loaded revolver and was also assaulted by fist blows; and, since the said place was within the jurisdiction of Khar Police Station, to ensure that the evidence on the spot was not removed and destroyed, immediately, a team was deputed to conduct spot panchnama. The team reached this spot along with panchas and videographer.
32. However, on the basis of information now collected by the present Investigating Officer of Crime Branch at our instance, it is revealed that there was continuous interaction between the officers of ::: Downloaded on - 09/06/2013 17:08:14 ::: 30 304410 Powai Police Station and Khar Police Station as soon as the officials of Powai Police Station recorded statement of the complainant in Hiranandani Hospital at around 17.25 hours. The first such telephonic call was made at around 18.08.03 hours by the Senior Police inspector of Powai Police Station to Senior Police Inspector of Khar Police Station.
That telephonic call was followed by intermittent telephone calls from the Senior Police Inspector of Khar Police Station to Senior Police Inspector of Powai Police Station up to 20.56.56 hours. In that sense, the fact noted in the Case Diary that vague information about the place of incident was received at around 19.00 hours and for the first time the information regarding the exact location became available later on at 23.00 hours appears to be doubtful. Inasmuch as, the statement of the petitioner recorded by the police official of Powai Police Station at around 17.25 hours in Hiranandani Hospital discloses the details of the time and exact place of incident and the persons involved in the commission of offence.
33. It is unfathomable that, in spite of disclosure of the specific place of incident and the nature of assault, the said information was not communicated by the police officials of Powai Police Station to police officials of Khar Police Station in the first telephone call made at ::: Downloaded on - 09/06/2013 17:08:14 ::: 31 304410 18.08.03 hours or the subsequent five telephone calls exchanged between them till 23.18.57 hours. Suffice it to note that the factual position stated in the Case Diary that, for the first time at around 23.00 hours, the information regarding specific location, where the assault and the nature of assault took place, was conveyed, is doubtful, considering the position emerging from the several telephonic calls made between 18.08.03 hours to 23.18.57 hours, between the officials of Powai Police Station and Khar Police Station, inter se.
34. What is further intriguing is that the officials of Khar Police Station thought it appropriate to immediately rush to the spot to conduct the spot panchnama at around 23.00 hours soon after receiving the details of the incident, even without waiting for the transfer of F.I.R. to Khar Police Station. However, no explanation is forthcoming as to why similar exuberance was not shown on receipt of the first call at around 18.08.03 hours, especially when police party was deputed to that spot and no incriminating circumstance was found thereat. At the same time, no entry in the Police Station Diary of Khar Police Station has been made about the said follow-up action or the spot panchnama conducted at around 23.00 hours, though conducted without registration of F.I.R. The Police Station Diary of Khar Police Station contains only two entries.
::: Downloaded on - 09/06/2013 17:08:14 :::32 304410 One is regarding the information received from Powai Police Station at 19.00 hours and the other is of transfer of F.I.R. to its police station at 00.20 hours on 24th September, 2010. Notably, there is no telephone record of call received by Khar Police Station at 19.00 hours, as is noted in the Police Station Diary of the said police station. The call record shows that the first call was made by the Senior Police Inspector of Powai Police Station to his counterpart of Khar Police Station at 18.08.03 hours, which lasted for 113 seconds. The second call was made by Senior Police Inspector of Khar Police Station to his counterpart of Powai Police Station at 18.37.40 hours and the next call at 19.29.44 hours. Further, it is significant to note that the summary of telephonic call details given to us by the Investigating Officer reveals that telephonic call was made from the residence of Ranes (landline) on the mobile of Police Inspector of Khar Police Station at around 21.43.07 hours on 23rd Septembr, 2010, and, again, to the Senior Police Inspector from the mobile of Personal Assistant of Narayan Rane on the mobile of Senior Inspector of Khar Road Police Station at around 23.23.09 hours and followed by another mobile phone from the colleague of Narayan Rane, Siddiqui, M.L.A., to the Senior Police Inspector at around 23.54.16 hours. Significantly, the spot panchnama was conducted by Khar Police Station during that period. Be that as it may, the time taken between the ::: Downloaded on - 09/06/2013 17:08:14 ::: 33 304410 time of incident and the time of recording of spot panchnama was sufficient enough to facilitate wiping off and destroying the evidence on the spot which could have disclosed the happening of some incident at the spot. Only after the evidence must have been destroyed, Khar Police Station proceeded to record spot panchnama, so as to indicate that no incident whatsoever had happened on the said spot. Here, it may be worth mentioning that the statements of accused and some other persons present on the scene of offence, as recorded by Khar Police Station flatly denied any incident having taken place. They have gone to the extent of asserting that the petitioner had not arrived or was present on the spot at the relevant time. Indeed, their later statements are at variance to their earlier stand. The fact that the petitioner had sustained injury, resulting in oozing of blood, and, in that condition, rushed out of the office of Nitesh Rane and entered his car, which was waiting near the building; and the fact, when the petitioner entered the car, was profusely bleeding and was in injured condition has been supported by his friend, Devesh, who was waiting for him near the car. That pre-supposes that some incident had taken place on the spot at the relevant time. In spite of that, in the spot panchnama, no traces of blood have been noticed.
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35. We are conscious of the fact that we cannot assume that incident alleged by the petitioner, in fact, had taken place. From the circumstances now gathered after the further information became available, it is obvious that the officials of Khar Police Station have not recorded the correct position in the Case Diary and the Police Station Diary as well. We are also conscious of the fact that, now, investigation stands transfered to the Crime Branch, which is an independent investigating agency. However, the record placed before us indicates that the new investigating agency (Crime Branch) has proceeded with the investigation on the same lines and same material already collected by Khar Police station. Therefore, taking over all view of the matter, we may have to record our opinion one way or the other.
36. Be that as it may, it is now noticed from the further information gathered at our instance that there was telephonic interaction between the members of the group of accused inter se and also with the members of the group of Hiranandani Hospital and between the doctors and Hiranandani before the press conference of Dr. Sujeet Chatterjee of Hiranandani Hospital, which is a private hospital. Moreover, it is unusual that a press conference is held by the doctor of a private hospital to disclose the outcome of the examination in respect of a medico-legal ::: Downloaded on - 09/06/2013 17:08:14 ::: 35 304410 case, which was yet to be investigated. Pertinently, Narayan Rane, in his press conference held on 24th September, 2010, has stated that he had deputed his men at Hiranandani Hospital to keep watch on the developments. He has also stated that he was receiving detailed reports from the police officers, including the Deputy Commissioner of Police.
He has also gone on record that he had received the Medical Reports before his press conference.
37. The above-noted circumstances, on the one hand, may appear to be in the realm of guess-work, but, on the other hand, if properly investigated, may unravel the lead which may trail to the accused and members of their group and even reveal that some incident, if not the incident as alleged by the petitioner, had taken place, including of destroying or removing the evidence from the place of the incident by the members of the group of the accused in connivance with or with the knowledge of the police officers of Khar Police Station. It is also possible that the medical records of Hiranandani Hospital were prepared under influence of persons interested in the outcome thereof.
38. These are the two crucial events which would dampen the claim of the petitioner. Thus, if the petitioner's claim of possibility of ::: Downloaded on - 09/06/2013 17:08:14 ::: 36 304410 influencing the investigation done, in particular the spot panchanama by the officers of Khar Police Station as well as of preparing the medical report of Hiranandani Hospital under the influence of the members of the group of accused, were to come true, that may throw up an entirely different situation. The first, amongst the two events, is the spot panchnama and the second is the medical examination report of Hiranandani Hospital. So far as the spot panchnama is concerned, we have already adverted to the questionable circumstances.
39. Reverting to the medical report of Hiranandani Hospital, in the first place, the statement of the concerned doctor indicates that, although there was no practice in the past, however, while examining the petitioner, the junior doctor took two photographs of the injury of the petitioner on her mobile phone out of curiosity. This is not a normal practice followed by the said hospital. Further, even the statement of Dr. Sujeet Chatterjee records that, when the petitioner was admitted in the hospital, he had complained of injury due to bullet and was completely drenched with blood. Indeed, he has stated that, on examination of the petitioner, no signs of injury caused due to firing shot was found. However, it appears that the petitioner's injury was washed with saline water and sutured. The mouth-wash was also collected.
::: Downloaded on - 09/06/2013 17:08:14 :::37 304410 Be that as it may, what was so urgent for the C.E.O. of Hiranandani Hospital, which is a private hospital, to hold press conference to disclose the contents of the medical report, even though he was fully aware that it was a medico-legal case, and was still being investigated? Even this circumstance raises suspicion. When examined in the backdrop of the fact that, after the petitioner was admitted in Hiranandani Hospital, soon thereafter, Dr. Chatterjee contacted Hiranandani on his mobile at around 17.52.50 hours as is noticed from the further information now gathered by the Investigating Officer at our instance, coupled with the fact that there was telephonic call from the residence of Rane from landline on the mobile of Hiranandani at around 00.30.04 hours. Why this telephonic call was made at such odd hours and responded by Hiranandani is a matter for investigation. It is also noticed that, soon thereafter, Hiranandani had sent S.M.S. from his mobile at around 00.38.00 hours on the mobile of P.A. of Narayan Rane on the same night between 23rd and 24th September, 2010. Further, before the press conference was held by Dr. Chatterjee, at around 12.30 hours on 24th September, 2010, telephonic calls were exchanged between the officers of Hiranandani Hospital and even between the members of the group of the accused with the officials of the said hospital and vice versa. This circumstance, again, would create serious doubt about the haste in which the contents ::: Downloaded on - 09/06/2013 17:08:14 ::: 38 304410 of the medical report were allowed to be made public by the C.E.O. of a private hospital in respect of a serious medico-legal case under investigation. At the cost of repetition, we may have to keep in mind the firm statement made by Narayan Rane during his media conference at around 5.30 p.m. on 24th September, 2010 that he had deputed his men in Hiranandani Hospital to keep watch on the developments and he was being briefed from time to time and had also received the medical reports.
40. To get over this position, it is possible to rely on the medical report of J.J. Hospital. So far as the medical report of J.J. Hospital is concerned, in the first place, the petitioner was admitted to that hospital after a gap of three days from the date of incident. By that time, the petitioner was fully treated by Hiranandani Hospital. Moreover, medical report of J.J. Hospital is essentially founded on the reports and other information given by Hiranandani Hospital, which fact is clearly noted in the said report itself. The report is not positively indicative about the cause of the injury, but it mentions that it is "less likely caused by a projectile discharge from a fire-arm". At the same time, it records that the injury in question could be possible by a moving relatively pointed and sharp, hard object, like glass or metal. The case of the petitioner is that the bullet, after ricocheting, passed away, touching his ::: Downloaded on - 09/06/2013 17:08:14 ::: 39 304410 cheek. Whether it was bullet or some sharp, hard object, like glass or metal, which caused injury to the petitioner is a matter of investigation.
Moreover, the further information furnished by the investigating officer of call record would also disclose that there was interaction between the associates of the accused with the officials of J.J. hospital. Suffice it to observe that, if the foundation of the case itself has been modulated, the subsequent medical report of J.J. Hospital would obviously be in line with the same theory.
41. Notably, so far, no arrest or custodial interrogation has been made in connection with the alleged offence. Instead, the investigation is now directed to find out whether the injury suffered by the petitioner could be a self-inflicted wound. The statement of the accused and his supporters, in the first place, was intended to suggest that no incident had taken place. Instead, the assertion is that the petitioner did not come to the office of Nitesh Rane at all on that day. However, later on, the accused and his supporters, whose statements were recorded, conceded of having called the petitioner on telephone on that day. The fact that the petitioner reached the office of Nitesh Rane is supported by the witnesses. That belies the claim of the accused and his supporters.
The material on record also indicates that the office was crowded with ::: Downloaded on - 09/06/2013 17:08:14 ::: 40 304410 other visitors to meet Nitesh Rane. Those persons would be able to unravel the web of mystery. It was and would be necessary to identify those persons, which has not been done so far. As held earlier, the fact that the petitioner rushed out of the office of Nitesh Rane in injured condition, and was seen profusely bleeding, has come on record. It has also come on record that, around the same time, one of the cabin glasses in the office had broken and was being replaced. The statement of Azam Asgarali Sheikh, who had come to replace the broken glass in the office of Nitesh Rane, does not inspire that thorough investigation has been done from all angles, including to ascertain whether the glass fitted in the cabin of Nitesh Rane was bullet-proof and unbreakable glass. The investigators are assuming that no firing took place in the cabin of Nitesh Rane, because the fire-arms of personal guards were unused and Nitesh Rane did not have any licence to possess fire-arm weapon. There can be no presumption that firing can be done only from a licensed revolver.
Moreover, no enquiry is made to Licensing Authority of Mumbai, where Nitesh Rane is ordinarily residing. In any case, no enquiry is made whether the associates of Nitesh Rane, and more particularly, who were allegedly present when the petitioner entered the cabin, possess any licensed or otherwise fire-arms. The statement of personal guards, including the ones, who were present near the cabin, has not been ::: Downloaded on - 09/06/2013 17:08:15 ::: 41 304410 recorded immediately. These and several other issues will have to be addressed during the investigation of the case.
42. What is further intriguing to note in this case is that more than one person belonging to the group of accused whose statement has been recorded by the police, have used mobile phones, which are in the name of some other person, and are not in a position to identify that person.
43. Further, the Personal Assistant of Nitesh Rane, in his first statement, has denied having interacted with the petitioner at all on 23rd September, 2010, but, then, in his supplementary statement recorded on 11th October, 2010, conceded that he had talked to the petitioner on telephone on that day. There is yet another curious circumstance noticed by us in the call records made available by the present Investigating Officer. At least in respect of two mobile numbers, it is seen that the timer of incoming and outgoing calls has been blanked out. In other words, as against the incoming as well as outgoing calls, the time indicated is 00.00.00 hours. We would not place much emphasis on this aspect for the present. For, that will have to be enquired into during the investigation. However, considering the over all situation, coupled with ::: Downloaded on - 09/06/2013 17:08:15 ::: 42 304410 the fact that the right of the complainant of a free, fair and impartial investigation of his complaint is a fundamental right under Article 21 of the Constitution of India, and that there are inexplicable circumstances borne out from the record which create doubt about the manner in which the investigation has had taken off soon after the incident, it has become necessary to provide credibility and instil confidence in the investigation of this case, which involves son of the sitting Cabinet Minister of the State and brother of a Member of Parliament. Merely because the investigation is now transferred to Crime Branch does not mean that it is a free, fair and impartial investigation of the case as such. For, the Crime Branch has taken over the investigation from the stage it was left by Khar Police Station and has toed the same line on account of the record already created in that regard. The quintessence is not only to do free, fair and impartial investigation of a criminal case, but it should also be seen to be so done.
44. Since the petitioner has complained against the assailant, who is none else but the brother of a sitting M.P. and a son of the Cabinet Minister of the State of Maharashtra, coupled with the circumstances presented from the record, which raise issue of credibility of the investigation done so far, the appropriate course, in our opinion, is ::: Downloaded on - 09/06/2013 17:08:15 ::: 43 304410 to transfer the investigation to C.B.I. This is not to undermine the efforts put in by the present Investigating Officer of Crime Branch Mr. Satardekar; but, as aforesaid, if the foundation of the investigation itself is questionable, which commenced with the pre-determined spot panchnama done by the officials of Khar Police Station and the haste with which the contents of the medical report of examination of the petitioner were disclosed to the media in respect of a serious medico-
legal case under investigation and relying on the said report, respondent No.6 immediately called for the press conference, we feel that this is imminently fit case to hand over the investigation to C.B.I. for re-investigation, as all angles will have to be thoroughly enquired into and investigated.
45. In our opinion, in the fact situation of the present case, transfer of the investigation of the case to C.B.I. would provide credibility and instil confidence in investigation and would do complete justice in enforcing fundamental rights of all concerned.
46. We direct to keep the original record, including the call records furnished to us in three different sets by the present Investigating Officer, to be kept in sealed cover to be handed over to the Investigating ::: Downloaded on - 09/06/2013 17:08:15 ::: 44 304410 Officer of C.B.I. We make it clear that we have avoided to discuss all the material regarding call records and the statements placed before us, in detail, as the matter is still at the stage of investigation. We, once again, make it clear that no observation in this judgment is expression of opinion, one way or the other, on merits of the case, but is limited to examine the grant or non-grant of reliefs claimed by the petitioner.
47. Reverting to prayer clause (b), it would be premature to assume that the police officials of Khar Police Station are guilty of inaction or delaying investigation as alleged. That aspect can be considered only after the investigation by the C.B.I. is completed, inasmuch as, if the C.B.I. were to form altogether different opinion than the one on the basis of which the investigation was proceeded by the officers of Khar Police Station, it would be a case warranting action against all concerned, including against the officers of Khar Police Station for conniving in destroying the evidence with regard to the incident in question. In other words, relief in terms of prayer clause (b) cannot be considered at this stage. The same is left open to be examined at appropriate stage and when occasion arises.
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48. Accordingly, petition succeeds in part. Rule is made absolute in terms of prayer clause (a) only. All issues relating to prayer clause (b) are left open to be considered if and when occasion arises.
Petition is disposed of on the above terms.
49. We direct the Registrar (Judicial-I) to keep the original record furnished by the present Investigating Officer of Crime Branch during the course of hearing (including on two pairs of pen drives) in sealed cover in his custody under lock and key to be handed over pursuant to an order to be passed by Court of competent jurisdiction in that regard.
A.R. JOSHI, J. A.M. KHANWILKAR, J.
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